MOHESHWARI PRASHAD BHAGAT Vs. MAHADEO ROY

JUDGEMENT

(1.) This was a suit for the recovery of the price of nine trees said to-have been cut from the land of the plaintiff landlord and misappropriated by defendants 1 to 4 at the instance of defendants 5 to 9. The defence was that the trees stood in the mokarrari land of defendants-5 to 9 and that seven of them had been taken by defendants 1 to 3 with their consent and for a consideration or in accordance with custom. The plaintiff put his claim at Rs. 109. The trial Court dismissed the suit, and this dismissal was upheld in appeal by the Deputy Commissioner, Subordinate Judge of Palamau. The learned-advocate for the plaintiff has filed a second appeal and also an application in civil revision against the order of the lower Appellate Court.

(2.) It has been contended on behalf of the defendants-respondents opposite party that a second appeal is barred in this case by Section 102, Civil P.C. That Section bars a, second appeal in a suit of the nature cognizable by Courts of Small Causes when the amount or value of the subject-matter of the suit does not exceed Rs. 500. The learned advocate has contended that the present was a suit of the nature of a Small Cause Court suit, and in support of this contention he has referred, among other cases, to Damodar Jha V/s. Baldeo Prasad A.I.R (1930) Pat 575. The principle laid down in that case is that where upon the case laid in the plaint it is clear beyond any shadow of doubt that the defendant had committed an offence punishable under Chap. 17, I.P.C., the jurisdiction of the Small Cause Court to try such a suit is barred; but where upon the facts stated in the plaint the case against the defendant is one of wrongful or illegal cutting of trees which is not necessarily penal so as to bring him within the purview of the Indian Penal Code, the jurisdiction of the Small Cause Court is not at all barred.

(3.) The learned advocate for the plaintiff does not contest this proposition of law, but has endeavoured to show that the plaint in the present case did disclose an offence punishable under Ch. 17, I.P.C. I have looked into the plaint and particularly para. 6 of it on which stress was laid for the plaintiff without being able to find all the ingredients of any offence coming within that Chapter. It must therefore be held that the second appeal is incompetent.